Punjab-Haryana High Court
Pranab Bishwas vs State Of Punjab on 5 September, 2012
Author: Surya Kant
Bench: Surya Kant
Criminal Appeal No. 897-DB-2007 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH
In Re:Criminal Appeal No. 897-DB-2007
Pranab Bishwas Versus State of Punjab
CORAM : HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR. JUSTICE R.P. NAGRATH
(i) Whether Reporters of local papers may be allowed to see the
judgment?
(ii) To be referred to the Reporters or not?
(iii) Whether the judgment should be reported in the Digest?
Present:- Mr. Krishan Sehajpal, Advocate
for the appellant.
Ms. Manjari Nehru Koul, Addl. Advocate General, Punjab
for the respondent.
R.P. NAGRATH, J.
The appellant has been charged of the offence under Section 302 of the Indian Penal Code (for short 'IPC') for committing murder by intentionally causing the death of Dinesh Kumar Bishwas on the intervening night of 13/14.04.2006 at about 3.00 a.m. He was convicted of the said charge and awarded sentence of life imprisonment with a fine of ` 5,000/-, and in default to undergo further rigorous imprisonment for a period of six months vide judgment of conviction and sentence dated 29.08.2007 passed by the learned trial Court. His appeal is pending before this Court. The learned counsel for the appellant and learned State's counsel were heard.
2. In a criminal trial under the Indian Penal Code, the Courts have to invariably deal with cases based on direct or circumstantial evidence or both. Direct evidence comprises of eye witness account of the incident. In the cases resting upon circumstantial evidence, the settled law on the subject is that the inference of guilt can be justified only when all the incriminating facts Criminal Appeal No. 897-DB-2007 (2) and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. Where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be as to negative the innocence of the accused and bring home the offence beyond any reasonable doubt. The said principle is elaborately summed up by Hon'ble Supreme Court in Kusum Ankama Rao V. State of Andhra Pradesh, (2008) 13 SCC 257.
3. The proof of criminal charge(s) rests on various factors and in certain cases the motive to commit the crime and identity of the culprit are of prime importance. The issues whether the death is or is not homicidal; impact of delay in lodging the FIR or its dispatch to the Area Magistrate; reliance upon a person whose evidence is attacked as chance witness are the other relevant factors. The Courts are more often than not also confronted with the impact of the certain witnesses turning hostile but the reliance is still placed by the prosecution upon portions of the statements of such adverse witnesses, in support of the circumstances, available and proved. These are broadly the issues, which are germane to a criminal trial.
4. The brief conspectus of the relevant facts of this case is that Dr. Dinesh Kumar Bishwas, who was residing in a rented accommodation, was murdered on the intervening night of 13/14.04.2006. The owner/landlord of that double storey house, namely; Arvinder Singh (PW-5), Harish Chander Pathak (PW-1), Varinder Singh (PW-2), were the other tenants of Arvinder Singh in the same house. They are all the eye-witnesses. There were other witnesses also cited by the prosecution. Four of the cited witnesses namely; Nandita Bishwas wife of the deceased, Samel Bishwas, Shankar Kumar Bishwas, both brothers of Nandita Bishwas, and Bidhan Bayal, the husband of Criminal Appeal No. 897-DB-2007 (3) the sister of wife of the deceased, have been conveniently so to say, given up by the prosecution, not on the ground that they were won over by the appellant but very strangely as 'unnecessary'. The glance at the statement of the above witnesses recorded under Section 161 Cr.P.C. would show that an earnest effort was made by the Investigating Officer to collect the evidence to the effect that the appellant was allegedly entrusted with cash amount by the deceased to be handed over to his wife in a village in West Bengal to which the appellant and the deceased belonged.
5. Nandita Bishwas wife of the deceased has rather filed Criminal Revision No. 88 of 2008, against the sentence awarded by the trial Court, with a prayer that in the facts and circumstances of the case, sentence awarded to the appellant be enhanced to capital punishment and fine of ` 5 lacs be imposed in the interest of justice. It is stated in the grounds of revision that the learned Sessions Judge imposed a meagre amount of ` 5,000/- as fine without disclosing reasons.
6. One cannot visualize the basis, how the examination of the above witnesses was considered unnecessary by the Public Prosecutor, whose duty was aimed at showing that the appellant was known to the deceased and to connect him with the crime. The witnesses were, thus, cited not only to prove the motive with the appellant but also his identity. There was no other witness examined or cited by the prosecution to reveal the above facts of acquaintance of the appellant with the deceased and with regard to payment of cash amout to be delivered to the wife of the deceased, which could enable the prosecution to say that this was done to avoid duplicacy of evidence.
7. This is a matter of serious concern because in a criminal trial it is the Public Prosecutor, who holds the brief on behalf of the State. In certain circumstances it can be said that the trial Court should have exercised its powers under Section 311 Cr.P.C., whereunder it is bound to summon and examine or recall and re-examine any such person if his evidence appears to Criminal Appeal No. 897-DB-2007 (4) it to be essential to the just decision of the case. In this case, the evidence of these witnesses appeared to have escaped notice of the trial Court because the version stated by the above witnesses was not part of the allegations mentioned in the FIR relating to the incident of murder, which took place during the night of 13/14.04.2006. The FIR is not an encyclopedia of the facts. It only initiates the process of the investigation and then begins the fuction of the Investigating Officer to collect the relevant evidence.
8. The result of the case may be either way but the important and relevant evidence collected by the Investigation Agency should have been produced and if not done, the trial Court could invoke its powers under Section 311 Cr.P.C. and if no such attempt was made, the same has to be ordered in terms of the provisions of Section 391 Cr.P.C.
9. The course now open to us would be to direct the learned trial Court to record the statements of these four witnesses by way of additional evidence and to send its report in terms of Section 391 Cr.P.C.
10. Section 391 Cr.P.C. does not require any application on behalf of the prosecution or the defence for taking further evidence or direct the same to be taken. Sub section (1) says that in dealing with any appeal under this chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is High Court, by a Court of Session or a Magistrate. From the facts stated above, we find that the examination of above witnesses was essential for the just decision of the case. Needless to reiterate the principle that when the examination of these witnesses is recorded, the defence would have complete opportunity to cross- examine the witnesses for testing their veracity.
11. We, therefore, direct the Sessions Judge, Patiala, the successor of the learned trial Court to summon and examine Nandita Bishwas wife of the deceased, Samel Bishwas, Shankar Kumar Bishwas, both brothers of Nandita Criminal Appeal No. 897-DB-2007 (5) Bishwas and Bidhan Bayal, husband of sister of the deceased. Thereupon, the learned trial Court would also record the supplementary statement of the appellant in accordance with Section 313 Cr.P.C. to enable him to explain the circumstances that may appear in the additional evidence and provide him opportunity to produce defence, if any. The trial Court shall conclude the entire exercise within a period of 4 months and send its report.
12. Before parting with this order, it may be observed that criminal appeal has come up for hearing after lapse of several years from its institution. The appellant is in custody. The material witnesses, who were closely related to the deceased and meant to throw light on relevant issues in this case having not been examined and simply given up as unnecessary at the sweet will of the prosecutor conducting the case. Was it a careless action or actuated with extraneous consideration ?
13. We direct that an enquiry be held in the matter, as to how the above material witnesses, including the wife of the deceased, who were closely related to the deceased, were given up by the prosecution, as those witnesses were cited to establish the acquaintance of the deceased with the appellant and for showing how the motive could emerge for committing the crime. We also direct that some methodology should be prepared by the State Government and other stakeholders, so that such uncontrolled exercise of discretion by the Public Prosecutor is not misused. Such a tendency not only defeats the criminal justice delivery system but also adversely affects the rights of the appellant, who is in custody since long.
14. It would not lie for the prosecution to say that the Public Prosecutor is the best person in the conduct of the trial and sometimes it is known that the witnesses would not be supporting the prosecution case. Such an argument is not applicable to this case because the witnesses are close relatives of the deceased. To allay the fears of prosecution about the impact of the witnesses turning hostile, the law on the subject is very well settled that Criminal Appeal No. 897-DB-2007 (6) the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. The statement of a witness turning hostile recorded under Section 161 Cr.P.C. when confronted by the prosecution, can be taken into consideration by virtue of proviso to 162 (1) Cr.P.C. For the above principles, the reference can be made to State of Rajasthan v. Teg Bahadur and others, (2004) 13 SCC 300 and Bhagwan Dass v. State (NCT of Delhi), (2011) 6 SCC 396.
15. Principal Secretary (Home), Government of Punjab shall comply with the above directions and fix responsibility for the above lapse. Compliance report be placed on record.
16. Registry is directed to send the original trial Court record to the Sessions Judge, Patiala. The trial Court would first secure the presence of the appellant (who is in custody) before proceeding further in the matter.
( SURYA KANT ) JUDGE ( R.P. NAGRATH ) JUDGE September 5, 2012 jk